Expert Witness Journal Dec 24 - Journal - Page 83
Independent Review by Chris Henley
KC of the CCRC’s Handling of the
Andrew Malkinson Case
The results of an independent review by Chris Henley KC (Mountford Chambers) of the
Criminal Cases Review Commission’s (CCRC) handling of the Andrew Malkinson case, one
of the worst miscarriage of justice cases of the 21st century, has today been published.
l The
CCRC were wrong to appear, in a statement
put out in August 2023, to take full credit for the
retesting that had taken place as part of its consideration of the 2021 application. All the crucial initial tests,
which led to the further testing overseen by the
CCRC, had been carried out by APPEAL without the
assistance of the CCRC. It was Appeal who unearthed
the failure by the GMP to disclose previous convictions
of prosecution witnesses and photographs that proved
a key medical finding had been mis-recorded
Background
On 26th July 2023 the Court of Appeal quashed
Andrew Malkinson’s convictions for two offences of
rape, and one offence of attempting to choke with intent to commit an indictable office, namely rape. He
had been sentenced on 30th March 2004 to life imprisonment with a minimum term of 7 years but spent
17 years in prison before he was released, plus a further three under probation supervision. Throughout
his ordeal he steadfastly maintained his innocence. It
took 20 years, and two Court of Appeal hearings for
his conviction to be overturned.
Recommendations
The CCRC must review all previous cases where
new DNA opportunities might be available. The failure to understand the significance of new DNA results
cost Mr Malkinson years in prison.
l
Mr Malkinson made three applications to the CCRC
in 2009, 2018 and 2021 to use its statutory powers to
refer his case back to the Court of Appeal. The first
two applications were refused, the third application
resulted in a referral back to the Court of Appeal in
January 2023, and ultimately the successful appeal
hearing in July that year. At that Appeal hearing Mr
Malkinson was represented by Edward Henry KC,
also a barrister at Mountford Chambers.
l Staff must receive regular and improved training in
how to assess DNA evidence
l The CCRC must always provide written reasons if a
decision is made not to obtain the police file. The failure to examine the police file in this case meant that
very important disclosure failings were not identified
by the CCRC.
Following the successful Appeal hearing, on 21st August 2023 the CCRC announced that it was appointing Chris Henley KC to conduct a review of their
handling of the three applications Mr Malkinson
made to them
l The CCRC should work as collaboratively as possible with applicants and their representatives. Issues
from a previous application should always be revisited
in the light of a new application and should inform
opportunities for further testing work.
The review examined all the work undertaken by the
CCRC during their consideration of the three applications, the quality of the decisions made, the investigative strategies, and the length of time taken to
reach conclusions.
l Oversight of the work being carried out within the
CCRC must improve with regular face to face meetings updating Group Leaders on issues and progress.
There was far too much drift in the first application,
with months passing and almost nothing happening.
Summary of the Review Findings and
Recommendations
Findings
l Serial failures to obtain the police file at the time of
the first review in 2009, again in 2018, which would
have produced different outcomes, and again in 2021.
l The CCRC must receive more resources from Government. The CCRC’s caseload has grown dramatically over recent years at a time when its budget has
reduced significantly
Quote from Chris Henley KC on the publication of
his Review, “Mr Malkinson spent many years in
prison fighting this appalling miscarriage of justice. In
2009 he turned to the CCRC but they failed him.
Lessons must be learned. It is almost impossible to believe that this is the only case that has not been handled properly. The CCRC must make every possible
effort to identify other applications where mistakes
might have been made, and immediately implement
the recommendations made in my report”
Specifically, during the 2018 review by the CCRC,
concerns were raised over the way identification evidence was obtained that breached Code D of PACE.
This should have resulted in the police file being
obtained.
l
Opportunities to obtain fuller DNA results were
missed in 2009. The significance of new DNA findings
was not properly understood.
l
In 2018 the CCRC should have independently
resolved to commission further DNA testing on the
samples as techniques had advanced.
l
EXPERT WITNESS JOURNAL
81
DECEMBER 2024
